Mandatory vaccine policies became even more of a scorching hot topic after the Biden Administration announced its Path Out of the Pandemic initiative (which we previously wrote about here). Some employees may have a legitimate medical reason for refusing a COVID-19 vaccine (e.g., an allergy to vaccine components). But what about an employee claiming to have a religious objection to taking the vaccine? We have recently seen clients experiencing an influx in requests from employees seeking a religious accommodation to be exempt from the company’s mandatory vaccine policy. Below, we discuss some of the complex legal and practical issues employers should consider when navigating these unchartered waters.

Quick recap of the “religious exemption”

Title VII of the Civil Rights Act (Title VII), and similar state and local anti-discrimination laws, prohibit employment discrimination on the basis of religion. To comply with those laws, employers are generally required to accommodate an employee’s “sincerely held” religious belief, observance or practice. A religious accommodation is an adjustment to the work environment that, once implemented, allows the employee to continue working while also complying with his or her religious beliefs. In guidance issued earlier this year, the EEOC stated “[t]he law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.” Even if the religious assertion seems irrational or is not the actual teaching of a recognized religious group or denomination, the relevant standard under Title VII is the sincerity of the individual’s belief.

Determining what a “sincerely held” religious belief means

Here is where it gets tricky. The EEOC and courts have interpreted “religious belief” very broadly under Title VII. An employee does not have to show they attend a place of worship, are a member of an organized religion, or even believe in a deity. Nor does an employee seeking a religious accommodation need to provide a note from their priest or spiritual advisor verifying that employee’s belief. According to the EEOC, a “religious belief” includes any “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” In its Compliance Manual, the EEOC warns employers should not be in the business of trying to decide whether a person holds a religious belief for the “proper” reasons. The inquiry should focus on the sincerity of the belief; not the motives or reasons for holding that belief in the first place.

Questioning the sincerity of an asserted religious belief

According to the EEOC, the sincerity of an employee’s stated religious belief is usually not in dispute and is “generally presumed or easily established.” An employer may, however, question the sincerity of an asserted religious belief if there is an objective basis for doing so. In its Compliance Manual, the EEOC lists several factors for employers to consider:

  • Whether the employee has behaved in a manner markedly inconsistent with the professed belief;
  • Whether the employee is seeking a particularly desirable benefit that is likely to be sought for secular (nonspiritual) reasons;
  • Whether the timing of the request is questionable (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
  • Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

If the employer has an objective basis for questioning the asserted belief, the employer may request additional information from the employee to evaluate whether to grant the religious accommodation request. It is similar to the interactive process for disabilities under the ADA. Because the EEOC and courts have interpreted the concept of “religious belief” so broadly, however, employers should exercise caution before concluding a claimed belief is not “sincere.” Even if you have an objective basis for questioning an employee’s asserted belief, the employee may substantiate their belief in numerous ways—ranging from published materials to the employee’s own personal essay. This is a sensitive area of the law. We strongly suggest coordinating with legal counsel for help in addressing these issues.

Denying a religious accommodation request based on undue hardship

Under Title VII, an employer does not have to accommodate an employee’s religious beliefs and practices if doing so would impose an “undue hardship” on the employer’s legitimate business interests. However, unlike the ADA, the threshold for showing an undue hardship under Title VII is much lower. Employers can demonstrate an “undue hardship” under Title VII if the requested accommodation would impose more than a de minimis cost on the employer. De minimis is a Latin phrase essentially meaning in this context more than a minimal cost or burden; a vague standard to be sure. In contrast, an undue hardship under the ADA is defined as an accommodation requiring a significant difficulty or expense. In its Compliance Manual, the EEOC lists several factors employers can consider in denying a religious accommodation based on “undue hardship”:

  • It would diminish efficiency in other jobs;
  • It would infringe on other employees’ job rights or benefits;
  • It would impair workplace safety;
  • It would cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work; or
  • It would conflict with another law.

Title VII does not require an employer to prioritize an employee’s religious belief over other employees’ safety in the workplace. The type of business also matters. Employees of businesses in the healthcare, travel, hospitality and entertainment industries may have much more interaction with the public than other businesses—and thus a stronger business justification for denying a religious accommodation request. The bottom line is the undue hardship analysis is fact-specific and should be done on a case-by-case basis.

Practical takeaways for employers

Employers who decide (or are required) to mandate COVID-19 vaccinations will likely see an uptick in religious accommodation requests. Employers need to be very cautious when handling these requests. While an employer may have a legitimate legal basis to deny a religious accommodation request, there is no guarantee a fired employee will not sue.

We are living in a highly polarized social and political climate. Some people are very passionate in their political, cultural and moral views. Even if an employer successfully defends a lawsuit, litigation can be very expensive—costing tens, often hundreds of thousands of dollars. Such a lawsuit could get press coverage, and potentially become a source of distraction, frustration, or even contention among the workforce. In addition to the applicable state and local laws, employers should be mindful of these potential issues before terminating an employee who asserts a religious belief when resisting the company’s mandatory vaccination policy.

Also keep in mind the de minimis standard is a federal one. Depending on the jurisdiction, state and local laws may also need to be considered. Some states impose a higher standard for employers to find a proposed religious accommodation would create an “undue burden” on the employer’s business. The “undue hardship” standard under New York state law, for example, requires a showing of significant expense or difficulty.

Employers should establish a centralized procedure to manage religious accommodation requests. Employers should document the steps they took, including the metrics relied upon in deciding a proposed accommodation would (or would not) create an undue hardship. Employers should also strive to be consistent in managing religious accommodation requests and the criteria used to determine whether to grant a requested accommodation.

If you have any questions regarding mandatory vaccination policies or need guidance in dealing with accommodation requests or any other workplace issues, Reed Smith’s experienced Labor & Employment Group stands ready to speak with you.